Gibson v. Miller

• Decision Date: 12 May 1874
• Citation: 29 Mich. 355
• Court: Michigan Supreme Court
• Parties: Charles F. Gibson v. Albert Miller and others

29 Mich. 355

Charles F. Gibson v. Albert Miller and others

Supreme Court of Michigan

May 12, 1874

Heard May 8, 1874

Case made from Bay Circuit.

Assumpsit. Defendant Miller alleges error. Reversed as to him with costs of both courts.

Judgment of the court, as against Miller, reversed, and judgment entered in his favor for the costs of both courts.

McDonell & Cobb, for plaintiff.

Marston Hatch & Cooley, for defendant Miller.

OPINION

Graves Ch. J.

The plaintiff Gibson recovered judgment in the circuit court against the defendant George B. Whitman as maker and the other defendants as indorsers of a promissory note, and the defendant Miller, who defended separately, asks a review upon a case made, of the judgment against him. Upon consideration of the facts as set forth in the case we think no legal liability was established against him. The defendant George B. Whitman, obtained a loan from the plaintiff on a note made by George B. payable to the order of John C. Whitman, and which was first indorsed by the latter and then by Miller. This note fell due and was about being protested, and in order to obtain further time and take it up, George B. prepared the note in suit, making it payable like the first to the order of John C., and without communicating with the latter, who does not appear to have had any knowledge of it or connection with it until it fell due, then subscribed it himself as maker, and called on Miller to indorse it. Observing that the note was not indorsed by the payee and hence not in shape for use, Miller consented to put his name on the back of it on condition that he, George B., the maker, should "at once" get John C., the payee, to give his name as first indorser, and that it should not be used before such indorse ment.

However, in violation of this express condition, George B. immediately delivered the note in the shape it then bore to the plaintiff, who accepted it without any indorsement on the part of the named payee, and upon the understanding with George B. that he would thereafter obtain such indorsement. The note in question was thus taken by the plaintiff in place of the first one, which was given up and cancelled.

Miller was not aware until after it matured, that John C. Whitman had not indorsed this note.

It fell due, however, in the plaintiff's hands, without any indorsement by John C. Whitman, the payee, and then Mr. Gibson took steps to charge both Miller and John C. Whitman as indorsers, and precisely as though both had actually indorsed in regular course.

Some days after the action to charge them as indorsers Mr. John C. Whitman in fact put his name on the back of the note in the place of first indorser, and likewise made his guaranty of payment on the note.

Under these circumstances it appears to me that at the time when the steps were taken to charge Miller as indorser, the character of indorser had not in legal contemplation attached to him at all. The mere delivery of the note to the plaintiff by the maker, with Miller's name on the back of it, and without any act of transfer by the payee and even without his accession to the transaction or any knowledge of it, was not sufficient to invest the plaintiff with any legal title or impress upon the signature of Miller the legal quality of a full indorsement; and unless it did so Miller was not indorser. His relation or character as indorser could not exist without some one in being possessing the correlative relation or character of indorsee; and while this note continued in the hands of the plaintiff under a bare manual delivery by the maker, without any...